United States of America v. Jean Marie Carey

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PRECEDENTIAL
UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCUIT
No. 03-3780
UNITED STATES OF AMERICA,
v.
JEAN MARIE CAREY,
Appellant
____________
APPEAL FROM THE UNITED
STATES DISTRICT COURT
FOR THE W ESTERN DISTRICT OF
PENNSYLVANIA
(D.C. Crim. No. 02-cr-00089-1)
District Judge: Honorable Gary L.
Lancaster
____________
Argued May 11, 2004
Before: NYGAARD, McKEE and
WEIS, Circuit Judges.
(Filed: September 2, 2004)
____________
Thomas Livingston, Esquire (ARGUED)
Assistant Federal Public Defender
Shelley Start, Esquire
Federal Public Defender
Lisa B. Freeland
Acting Federal Public Defender
1450 Liberty Center
1001 Liberty Avenue
Pittsburgh, PA 15222
Attorneys for Appellant Jean M arie
Carey
Christine A. Sanner, Esquire (ARGUED)
Assistant United States Attorney
Mary Beth Buchanan, Esquire
Bonnie R. Schlueter, Esquire
United States Attorney
700 Grant Street, Suite 400
Pittsburgh, PA 15219
Attorneys for Appellee United States of
America
_______________
OPINION
WEIS, Circuit Judge.
Defendant complains that a
downward departure for cooperation
with the government was improperly
limited because she was given no notice
in advance that the sentencing judge had

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doubts about her credibility. Because she
failed to present any reason that the
result would have been different had she
challenged the judge’s impression, we
will affirm the judgment.
Defendant pleaded guilty
to one count of bank fraud in violation of
18 U.S.C. § 1344(1) and was sentenced
to 24-months incarceration. Following
the denial of her motion to reopen the
sentencing record, defendant appealed.
She contends that she was denied due
process and advance notice of the
sentencing judge’s intention to determine
a fact adverse to her entitlement to a
downward departure. See U.S.S.G. §
6A1.3.1
As part of her plea
agreement, the defendant agreed to
provide assistance to the government in
the prosecution of her co-defendant, Jack
Ogden. She testified against him at his
trial, but the jury acquitted. Judge
Lancaster presided over the two-day trial,
as well as the defendant’s sentencing
which occurred two weeks later.
Following the Ogden trial, the
government filed a § 5K1.1 motion for a
downward departure stating that “[Carey]
gave truthful responses to all questions
put to her and has otherwise cooperated
fully and completely within the meaning
of her plea agreement and § 5K1.1. . ..”
The Guideline calculation
yielded a range of 30-37 months’
incarceration. After counsel’s argument
at the sentencing hearing, Judge
Lancaster commented on the defendant’s
extensive criminal history, filled as it was
“with theft and fraud offenses so great
that she is in the same category as career
offenders for sentencing purposes.” He
noted that he had intended “to give the
maximum penalty of 37 months.”
The judge did, however,
agree to consider the government’s
motion for a sentence reduction for the
defendant’s assistance during the Ogden
trial. In determining the downward
departure, the judge noted that he was
taking the accuracy of her testimony in
the Ogden case into account. “In all
candor in my view I do not believe she
was truthful during the testimony. I
believe she embellished the criminality
of her co-defendant in order to get this
downward departure. She attributed
conduct to him even the government
didn’t . . ..” After allowing a 10-month
credit for pretrial incarceration, the judge
granted an additional three month
reduction pursuant to the § 5K1.1
motion.
Defense counsel then asked
the court to reconsider the sentence based
on the defendant’s good behavior during
the preceding year. The judge
responded, “I have given thought to the
sentence. I don’t do this lightly. I
understand what I am doing. I
1. This case is not governed by Blakely
v. Washington, 542 U.S. ____ (2004),
because it does not involve an upward
departure affected by criminal conduct to
which the right of jury trial applies.

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understand two years in the federal
penitentiary is rough. I think she needs
to be in a structured environment for a
while.”
Following the sentencing
hearing, the defendant moved to reopen
the record, asserting that the court’s
failure to put her on notice that the
truthfulness of her testimony was a
disputed sentencing factor foreclosed her
opportunity to respond. The District
Court denied the motion, noting that it
had granted a departure that took “into
consideration, among other things, the
defendant’s own testimony. Defendant
should not be surprised or feel ambushed
because the court undertook the
evaluation required by § 5K1.1.”
On appeal, defendant cites
Sentencing Guideline § 6A1.3, which
states that a court should not rely on a
factor important to a sentencing
determination without first alerting the
parties that the factor is in dispute and
granting the right to challenge any
adverse finding. She also claims that this
lack of notice denied her Due Process
under the Fifth Amendment.
I.
Generally speaking, we do
not have jurisdiction to hear a
defendant’s claim that a downward
departure was inadequate. United States
v. Minutoli, ____ F.3d ____ (3d Cir.
2004) (no jurisdiction “where a District
Court allegedly made a mistake of fact
when, in the exercise of its discretion, it
refused” to depart downward); United
States v. Khalil, 132 F.3d 897 (3d Cir.
1997) (no jurisdiction where there has
been some exercise of the court’s
discretion in departing downward);
United States v. Denardi, 892 F.2d 269
(3d Cir. 1989)(same).2 However, in this
case, the defendant alleges a violation of
the Constitution, a rule of criminal
procedure, as well as an incorrect
application of a Guideline. 18 U.S.C. §§
3742(a)(1) and (2) permit appeal of a
sentence if it was imposed in violation of
law [or] was imposed as a result of an
incorrect application of the Sentencing
Guidelines. See United States v. Ruiz,
536 U.S. 622 (2002).
Whether a sentencing
factor is a permissible basis for departure
is a question of law. Accordingly, we
have jurisdiction to entertain this appeal.
We exercise plenary review over the
District Court’s interpretation and
application of the Guidelines. United
States v. Figueroa, 105 F.3d 874, 875-6
(3d Cir. 1997). Under the PROTECT
ACT’s amendments to 18 U.S.C.
3742(e), which are applicable to this
case, see United States v. Dickerson, ___
F.3d ___ (3d Cir. 2004), we are required
to “give due regard to the opportunity of
the district court to judge the credibility
of the witnesses.”
2 But see United States v.
Dickerson, ___ F.3d ___ (3d Cir. 2004)
(government may appeal a downward
departure under 18 U.S.C. 3742(b)(1) -
(4))

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II.
It may be helpful to review
the procedures applicable to a downward
departure based upon the defendant’s
cooperation with the government. First,
the sentencing court may lower the
period of incarceration only after a
motion by the prosecutor under 18
U.S.C. § 3553(e). See United States v.
Bruno, 897 F.2d 691 (3d Cir. 1990).
Once the government has
filed an appropriate motion, the authority
returns to the district court. “It is the
District Court’s decision, not the
prosecutor’s, whether to depart and to
what extent . . . [T]he government’s
filing of a § 5K1.1 motion ‘does not bind
a sentencing court to abdicate its
responsibility [or] stifle its independent
judgment.’” United States v. Casiano,
113 F.3d 420 (3d Cir. 1997) (citing
United States v. Mariano, 983 F.2d 1150,
1155 (1st Cir. 1993)). As one court
phrased it, “[t]he District Court is not
obligated to depart downward simply
because a grateful prosecutor prefers a
lighter sentence.” Mariano, 983 F.2d at
1155. A prosecutor’s opinion of the
defendant’s truthfulness stated in a §
5K1.1 motion is understandably affected
by an advocate’s bias and does not
foreclose a contrary appraisal by a
neutral, impartial judge.
Nevertheless, once the
district court decides to grant a § 5K1.1
motion, “there are some parameters to
the exercise of the court’s discretion.”
Although “the bases for substantial
assistance departures listed in § 5K1.1
are not meant to be exhaustive, they are
instructive.” Casiano, 113 F.3d at 429.
According to the Guideline, “(a) the
appropriate reduction shall be determined
by the court for reasons stated that may
include, but are not limited to,
consideration of the following:
(1) the Court’s evaluation
of the significance and usefulness of a
defendant’s assistance taking into
consideration the government’s
evaluation of the assistance rendered;
(2) the truthfulness,
competent completeness and reliability
of any information or testimony provided
by the defendant.”
U.S.S.G. § 5K1.1(a). As we said in
United States v. King, 53 F.3d 589, 591
(3d Cir. 1995), a proper exercise of the
District Court’s discretion under 5K1.1
“involves an individualized qualitative
examination of the incidents of the
defendant’s cooperation . . ..”
On occasion, and despite
the terms of a government
recommendation, factors other than those
listed in 5K1.1 have been considered in
deciding the extent of a departure.
Casiano, 113 F.3d at 430 (nature and
circumstances of the offense may be
taken into account in limiting the extent
of a § 5K1.1 reduction); United States v.
Webster, 54 F.3d 1, 4 (1st Cir. 1995)
(limiting extent of §5K1.1 departure so
as not to "offset" the impact of a
mandatory 60-day month consecutive
sentence); United States v. Alvarez, 51

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F.3d 36, 39-40, 41 n.5 (5th Cir. 1995)
(limiting departure to avoid disparity in
sentences with less culpable co-
conspirators); United States v. Carnes,
945 F.2d 1013, 1014 (8th Cir. 1991)
(limiting departure in light of
prosecutor’s failure to press weapon
charges).
The court’s reservations
here as to the extent of the defendant’s
truthfulness were within the factors cited
in the Guidelines and are not subject to
attack as being an impermissible
criterion. In sum, a District Court has
authority to refuse or grant a downward
departure under § 5K1.1 and is granted
broad discretion in determining the
extent of the reduction.
III.
We now turn to the
defendant’s objection that she was
entitled to notice that the departure
would be affected by the court’s doubts
as to the truthfulness of her testimony at
the Ogden trial.
The Sentencing Guidelines
require the court to provide the parties
with an adequate opportunity to present
information when a sentencing factor is
reasonably in dispute. See U.S.S.G. §
6A1.3(a). In United States v. Burns, 501
U.S. 129 (1991), the Supreme Court held
that Fed. R. Crim P. 32 requires
“reasonable notice” to parties before a
district court considers an upward
departure on a ground not identified in
the pre-sentence report or in a pre-
hearing submission.
Fed. R. Crim. P. 32(h) was
amended in 2002 to read somewhat more
expansively than the holding in Burns.
The Rule currently reads, “[b]efore the
Court may depart from the applicable
sentencing range on a ground not
identified for departure either in the pre-
sentence report or in a party’s pre-
hearing submission, the court must give
the parties reasonable notice that it is
contemplating such a departure. The
notice must specify any ground on which
the court is contemplating a departure.”
Taken together, the Guidelines, Rules of
Criminal Procedure and case law provide
that, in general, when there are factors
that may have a measurable effect on the
applicable punishment, notice must be
given to the defendant to allow an
opportunity to comment on their
accuracy.
Failure to give notice
which realistically prevents a defendant
from presenting evidence on a disputed
point may, in some circumstances, affect
substantial rights and require re-
sentencing. See United States v. Himler,
355 F.3d 735 (3d Cir. 2004). However,
in United States v. Reynoso, 254 F.3d
467, 475 (3d Cir. 2001), the court
concluded that although Fed. R. Crim. P.
32 had been violated, the error was
harmless because even if notice had been
given there was nothing that defense
counsel would have done differently at
the sentencing hearing.
Similarly, United States v.
Nappi, 243 F.2d 758, 770 (3d Cir. 2001),
determined that failure to provide notice

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was not plain error unless the defendant
would have done something by way of
argument or proof that probably would
have affected the outcome. See also
United States v. Rivera, 192 F.3d 81 (2d
Cir. 1999).
There is a paucity of cases
citing a lack of notice to challenge a
limited downward adjustment; in most
cases citing lack of notice, the issue was
a “surprise” upward adjustment or failure
to grant any downward departure
whatsoever. In United States v. Patrick,
988 F.2d 641, 648 (6th Cir. 1993), the
sentencing judge relied on the testimony
and bearing of a co-defendant at his plea
hearing to justify a sentence
enhancement for defendant Patrick
because of his leadership role. The
Court of Appeals concluded that advance
comment on the co-defendant’s
testimony would not have provided
Patrick with any additional incentive or
ability to challenge its accuracy. “To the
extent that the sentencing judge relied on
a comparison of the demeanors of the
two defendants, that evidence was
essentially irrebuttable.” Had the
sentencing judge earlier notified Patrick
that his “bearing, as compared to that of
his co-defendant, was that of a leader, it
is difficult to see what evidence or
arguments such a disclosure would have
prompted Patrick to offer.” Patrick, 988
F.2d at 648.
By comparison, in United
States v. Himler, the sentencing court
based an upward departure on the
economic impact on the victims caused
by the defendant’s conduct, and did so
sua sponte and without any notice to the
parties. On appeal, Himler asserted that
if a warning had been given, he would
have subpoenaed certain financial
records bearing on the financial security
of the victims, investigated factors
underlying the sale of property which
had a connection with the charged fraud,
as well as invoked Guidelines provisions
that disfavored enhancement in the
circumstances. Based on the assertion
that such specific measures would have
been employed had notice been given,
we concluded that re-sentencing was
required. Himler, 355 F.3d at 743. It is
worth noting that the specific avenues of
defense foreclosed by lack of notice in
that case were quite different from the
circumstances in Patrick.
IV.
Fed. R. Crim. P. 32(h)
speaks to a “departure from the
applicable sentencing range” when no
notice was given either in the pre-
sentence report or a submission by a
party. In this case notice was given
through the government’s motion under
5K1.1 for a reduction of sentence and
therefore, by its terms, the Rule does not
apply.
Moreover, Rule 32(h) does
not limit a court’s discretion as to the
extent of a downward departure it may
apply. See United States v. King, 53 F.3d
at 591 (noting that the extent of a
departure is a “non-mechanical process,”
by which a sentencing court must give

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“appropriate weight to the government’s
assessment and recommendation, [but
still] consider all other factors relevant to
this inquiry.”)
Accordingly, we conclude
that the defendant is not entitled to any
relief under Rule 32(h).
Finally, we consider the
defendant’s challenge to the lack of
notice under Sentencing Guideline §
6A1.3.
Nothing in the Guideline
purports to require the sentencing judge
to disclose in advance such matters as his
appraisal of the undisputed material
contained in the pre-sentence report,
impressions created by the defendant’s
conduct during a trial, or the nature of
the violation. Indeed, such
announcement of the judge’s tentative
feeling about factors bearing on
appropriate punishment might undermine
the efficacy of the sentencing hearing.
An unwillingness to change one’s
publicly declared opinion is not a
stranger to the judiciary.
Moreover, a remand for re-
sentencing should not be required unless
there is reason to believe that an injustice
has occurred that can be corrected by
reconsideration. We are not persuaded
that that has occurred in this case.
This case is unlike those
where a sentencing judge relied on
testimony of a co-defendant in another
proceeding as the basis for a sua sponte
enhancement. See, e.g., United States v.
Berzon, 941 F.2d 8 (1st Cir. 1991). Here
it was the testimony of the defendant
herself that was under scrutiny.
Defendant was fully aware of what she
had said as a witness. The same judge
who heard all of the testimony in the
Ogden trial was in a unique position to
make a judgment on the defendant’s
truthfulness as required by § 5K1.1. In
such circumstances, the likelihood of
effective rebuttal is extremely slim.
To some extent the judge’s
evaluation of her veracity is similar to the
impressions gathered by the sentencing
judge in the Patrick case. We need not
term the appraisal here as “irrebuttable,”
but we would expect defendant to point
to specific steps she could have taken to
change the judge’s conclusion on what
he had seen and heard in the Ogden trial.
Only two weeks elapsed between the trial
and the sentencing so the facts were still
fresh in the minds of both defendant and
her counsel who had been in the
courtroom during her testimony.
Defendant did not
immediately object to the sentencing
judge’s reaction to her testimony, but did
so in her motion to reconsider. However,
neither in that motion nor in the briefs in
this appeal did she state what steps she
would have taken to alter the sentencing
judge’s opinion. If the defendant does
not point to a deprivation that could
affect the outcome, re-sentencing is not
required. Thus, this case fails the test set

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out in Himler.3
Moreover, the sentencing
decision was obviously influenced by the
defendant’s extensive criminal record
which began in 1980. As the judge
remarked, “short incarcerations have
done little to dissuade her from her
criminal life . . . I think she needs to be in
a confined environment . . . I think 24
months confined under strict supervision
is necessary for this woman.” These
comments further indicate that advance
notice of the judge’s skepticism about the
defendant’s truthfulness at the Ogden
trial would likely not have affected the
ultimate sentence imposed.
Accordingly, the judgment
of the District Court will be affirmed.
3 Our holding here
preserves notice to the defendants of
adverse sentencing factors as required by
U.S.S.G. §6A1.3 and Fed. R. Crim P.
Rule 32. Burns cautioned that “[w]ere
we to read [these provisions] to dispense
with notice, we would then have to
confront the serious question whether
notice in this setting is mandated by the
Due Process Clause.” 501 U.S. at 138.
We need not address defendant’s due
process claims here because the district
judge’s exercise of discretion here
comported with the requirements of
U.S.S.G. §6A1.3 and Fed. R. Crim P.
Rule 32 as interpreted by our binding
precedent. Id.

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